Defanging a legislation
NITIN SETHI, August 25, 2013
The Environment Ministry’s reading of the Supreme Court order has been made clear. A rejection of the project by even one village council would require the ministry to reject the proposal for forest clearance to Orissa Mining Corporation and Vedanta’s venture, the Union Environment Minister Jayanthi Natarajan has said in a letter to her colleague, the Union Minister for Tribal Affairs and Panchayati Raj V. Kishore Chandra Deo. Some advocates of the Forest Rights Act (The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights Act, 2006)
Once the Ministry does reject the clearance, it would be open to the State authorities or the project developers to go to court yet again. But by then the Congress would have done its victory lap in public playing up the role of the party scion Rahul Gandhi.
Ironically, the chest beating will also help the government take away attention from UPA’s conscious attempt at diluting the powers under the Forest Rights Act that can help prevent land grab.
The proof of it lies in the fact that there is not a second Vedanta in sight though there are dozens of cases across the country of people with claims over forests protesting against handing over their lands to industry. For a large part the UPA has ignored these cases. In fact, it has worked systematically to defang the legislation it had brought in with such fanfare only to realise that the law had more teeth than what was politically palatable. The States cared even less about this element of the Act from the start.
In August 2009, the then environment minister, Jairam Ramesh took a leap in ordering that no project requiring forestland would get it unless the rights of the people had been settled in the lands and that the people, through the gram sabha, had given their consent to the project over their lands. The logic was simple: if the government’s intention behind the law was to hand back lands that rightfully belonged to the tribals and others who had dwelled in or used the forests for generations then the government could not possibly take away with one hand what it gave with another.
It was passed as an office memorandum of the Environment Ministry and then promptly forgotten. The forest bureaucracy objected to the idea from the start. The order turned democracy as it is practiced on its head. Since the passing of the Forest Conservation Act, 1980 a handful of bureaucrats and the minister in Paryavaran Bhawan held the sole prerogative to approve or reject a project along with a similar set in the states. The memorandum threatened to allow gram sabhas to sit on veto against all their powers and discretion. Consequently, in most cases of clearances the orders were not pursued.
Vedanta became one of the few exceptions where the government used this order besides other concerns under green laws to block the project. But in most other cases, instead of the government being pro-active in seeking compliance of the orders from States and project developers, it was left to the claimants of rights or civil society to either plead their case or run to courts yet again.
Even as the Vedanta case went before the courts, the UPA government had begun to now look for officially doing away with the order that had become an irritant for investors and the government alike. As the August 2009 order became a rallying point for many civil society groups, merely ignoring the order did not suffice.
The Prime Minister’s Office set up a committee to review the need for such clearances from gram sabhas. A three-member committee, headed by the Principle Secretary to the Prime Minister with the environment and tribal affairs secretary on board, recommended that the need for such clearances be done away with, except in rare exceptional cases.
Mr Deo quietly agreed to it even as he referred to constitutional needs to protect tribal lands. A confounding position as it permitted the government to withdraw one of the few legislative tools besides PESA to implement the constitutional mandate. Environment minister Ms Natarajan did not concur with the report her secretary had signed on to, but agreed to dilute the norms for at least highway construction after Mr Deo had given in. Hemmed in by the pressures from within the government and the reluctance of the forest bureaucracy, she also permitted the need for gram sabha clearance to slip under a veil and not be a pre-condition to its mandatory Forest Advisory Committee giving its nod.
Then the government made another subtle alteration in its plea before the apex court. It carefully avoided mentioning its own orders that required a straight forward nod from the gram sabhas for the project in forestlands. It instead suggested that it wished to protect the ‘customary and traditional rights’ of the primitive tribal group. This ensured that there was no chance of getting a stamp of certainty from the Supreme Court on an order the government was trying hard to keep out of scrutiny.
The orders that the government did get – to ascertain customary and traditional rights – is now being implemented only in the Vedanta case. The government has not made any move to incorporate the Supreme Court order as part of the formal process of appraisal of projects.
It’s easy to pillory the nodal ministers for their inaction or their recoiling away from the responsibility that the Forest Rights Act imposes. The UPA has ensured that in public perception only these two are made out to be responsible for defending the law. It’s a smart bureaucratic trick that suggests that only nodal ministries are supposed to implement the law that falls under their administrative control and the rest can continue to argue against them or bend them. The over-riding decisions and powers of the Cabinet Committee on Infrastructure as well as the Group of Ministers on coal may be technically legitimate, but they have only added to this public posturing and abrogation of responsibilities.
Despite a strong and explicit political mandate to follow the law, it has taken humungous energy and resources to bring the Vedanta case nearer to a point of conclusion. But the high-profile case has created a smoke screen that keeps away from public eye the steady dilution of the rights of many other claimants to forestlands. These only blast out to seek attention occasionally when conflicts on ground turn violent, such as in the case of the Integrated Steel Plant in Jagatsinghpur district, Odisha by the Korean steel giant Posco.